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[2024] ZAECMHC 11
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Mdaka v Total Energies Marketing South Africa (Pty) Limited and Others (2379/2023) [2024] ZAECMHC 11 (13 February 2024)
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Certain
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
No. 2379/2023
Heard
on : 30 November 2023
Date
delivered: 13 February 2024
In
the matter between:
KHANYA
MDAKA
Applicant
And
TOTAL
ENERGIES MARKETING SOUTH
AFRICA
(PTY) LIMITED
First
Respondent
TOTAL
ENERGIES BRITE STAR SERVICE
STATION
(PTY) LIMITED
Second
Respondent
SETON
SMITH ATTORNEYS
Third
Respondent
DEPARTMENT
OF MINERAL RESOURCES
AND
ENERGY
Fourth
Respondent
FUEL
RETAILERS’ ASSOCIATION
Fifth
Respondent
JUDGMENT
MAJIKI
J:
[1]
There are two interlocutory applications to be determined in this
matter. The applicant, an unrepresented adult male,
in the main
application filed a rule 30A of the uniform rules (the rules)
application for the reason of the respondents’
failure to
comply with a directive issued. Subsequently, the first
respondent filed rule 30(1) application objecting to the
applicant’s
rule 30A application for the reason of his failure to afford it an
opportunity to remove the cause of complaint.
Further, it is sought
that the supplementary affidavit filed by the applicant without the
leave of the court be set aside. Both
applications are opposed.
The litigants will be referred to as in the main application.
BACKGROUND
[2]
On 31 May 2023 the applicant approached court with a certificate of
urgency seeking directives for an application he intended
to launch.
On 2 June 2023 he indeed filed and served his application papers.
Following the applicant’s replying
affidavit, filed on 20 June
2023, on 16 June 2023, he filed a document with the heading:
“
Supplementary
affidavit to the applicant’s founding papers.”
Paragraph 2 reads:
TAKE NOTE FURTHER, if you
intend to oppose this application:
“
(a) you must, by
Tuesday, 20 June 2023, at 09h30, deliver an intention to do [sic] as
well as any answering affidavit (s), if any,
and
(b) The applicant
shall then apply for leave to amend with this honourable Court”
(c) If
no objection be so received, the corrections contained herein shall
be deemed to be uncontested, and, thus,
accepted by the parties and
amended as such”.
[3]
In the affidavit the applicant sought to correct what he said were
errors and omissions in the founding affidavit. He
said those
arose because he had to file and serve the application papers within
forty-eight (48) hours of the directive.
What then followed
were replacing phrases and words from paragraph (a) to (j), under the
subheading “Amendments to the founding
affidavit”.
The paragraphs sought to be corrected are referred to in the content
of the sentences.
[4]
Thereafter, followed suggestions under the heading:
“
OMISSIONS IN THE
FOUNDING PAPERS”
The applicant therein
introduces new paragraphs on new legal issues, some with argument.
[5]
On 1 August the applicant filed Rule 30A application. He sought
to compel that the first respondent adhere
fully to the directive of
Brooks J, dated 4 July 2023. Further it reads:
“
TAKE NOTE FURTHER
that the Applicant shall approach the Acting Deputy President on
Wednesday, 2 August 2023 for their consideration
of the Applicant’s
unopposed Preferential Date application, dated 21 June 2023.
In this regard, the
Applicant seeks the enrolment of this matter on the Opposed Court
Roll on Thursday, 10 August 2023 or as soon
thereafter as counsel may
be heard by court.”
3.
FURTHERMORE, if you
intend to oppose this application:
(a)
you must by Thursday 3, August 2023 at 14h00, deliver
an intention to
do (sic) as well as any answering affidavit(s), if any by Tuesday, 8
August 2023,
(b)
should the first Respondent fail to deliver a notice
to object within
the time stipulated above, then it will be assumed that they are not
opposed to this application and the Respondents
consent to the
contents contained herein,
(c)
Should the First Respondent fail to fully comply with
the court
directive of the Honourable Judge Brooks, dated 4 July 2023, within
ten (10) days hereof (or at the direction of the
court at an earlier
date), then the Applicant shall apply to have the Fist Respondent
struck out from the matter, as per the rules
of the court, and a
default or summary judgment (sic) issued.”
[6]
The directive issued by Brooks J read:
“
(a)
The parties must file an[d] updated Joint Practice Note.
(b)
Either the applicant, if he has secured legal representation, or the
First Respondents, must
index and paginate the application papers.
(c)
The Registrar is directed to issue a notice of set down enrolling the
matter in the unopposed
court for 18 July 2023 indicating that this
is a holding date,
(d) The
parties should approach the Deputy Judge President to obtain
a preferential date, if
possible, on the opposed motion court roll.
(e)
The parties must thereafter file heads of argument and
a notice in
terms of Rule 15A of the Rules of Practice in respect of the
allocated opposed date.”
[7]
The supporting affidavit itself also raised a number of complaints
against a number of people including the court
officials, acting
Judge President and respondents’ legal representatives about a
number of other matters in proceedings launched
by the applicant.
[8]
On 7 August 2023 the first respondent filed the rule 30(1) notices.
The one related to an irregular step they
say the applicant took by
filing rule 30A application without affording the first respondent an
opportunity to remove the cause
of the applicant’s complaint.
[9]
The second rule 30(1) notice related to the irregular step by the
applicant of filing supplementary affidavit other
than the answering
and replying affidavits without the leave of the court.
Rule 30A provides:
“
(1)
Where a party fails to comply with these rules or with a request made
or notice given pursuant thereto, or with
an order or
direction made by a court or in a judicial case management process
referred to in rule 37A, any other party may notify
the defaulting
party that he or she intends, after the lapse of 10 days from the
date of delivery of such notification, to apply
for an order —
(a)
that
such rule, notice, request, order or direction be complied with; or
(b)
that
the claim or defence be struck out.
(2)
Where a party fails to comply within the period of 10 days
contemplated in subrule (1), application may on notice be made
to the
court and the court may make such order thereon as it deems fit.
Rule 30 (1) provides:
“
A
party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.
(2)
An application in terms of subrule (1) shall be on notice to all
parties specifying particulars
of the irregularity or impropriety
alleged, and may be made only if —
(a)
the
applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
(b)
the
applicant has, within ten days of becoming aware of the step, by
written notice afforded his opponent an opportunity of removing
the
cause of complaint within ten days;
(c)
the
application is delivered within fifteen days after the expiry of the
second period mentioned in paragraph
(b)
of
subrule (2).
(3)
If at the hearing of such application the court is of opinion that
the proceeding or step is irregular
or improper, it may set it aside
in whole or in part, either as against all the parties or as against
some of them, and grant leave
to amend or make any such order as to
it seems meet.”
[10]
On 24 August 2023 the applicant filed a rule 30A (2) application
dated 17 August 2023 seeking to strike out the
respondent’s
defence for failure to comply with the directive of 4 July 2023 and
rule 30A (1) notice of 2 August 2023.
The applicant gave notice
that he would seek to have the application set down for 24 August
2023. He also complained of the
letter filed on 28 July 2023 by
the respondents served and on him on 31 July 2023, recording their
concern for being directed to
paginate the court file, whilst the
practice manual requires the applicant as
dominis litis
to do
so. According to the applicant the letter was out of time as in
terms of rule 6(2)(4), the pagination and indexing
of the file should
have been done five (5) days prior the date of hearing; the 1 August
2023.
[11]
On 18 September 2023 the first respondent filed the application
seeking the setting aside of the applicant’s
supplementary
affidavit and other documentation filed together with his rule 30A
application.
[12]
On 3 October 2023 the applications were enrolled in the unopposed
motion court. This court was of the
view that the issues could
be curtailed through case flow management process, so that the main
application could be heard without
undue delay. Indeed, the
applicant was advised to seek legal representation, with a view that
he would seek leave to and
file a supplementary affidavit, which
process was unsuccessful. Instead, the applicant sought to file an
affidavit seeking condonation
of his supplementary affidavit.
That affidavit was not without its own problems, which fortified the
view that he needed
to have a legal representative. When the
applicant was no longer willing to wait for the process of
appointment of a legal representative,
the applications were
re-enrolled to be heard before the same court.
[13]
During the hearing, the applicant submitted that, in his application
he had stated that if the cause of complaint
(compliance with
directive of 4 July 2023) was not attended to, within ten (10) days
he would apply to have the first respondent
struck out from the
matter, in terms of the rules and obtain default or summary
judgment. Furthermore, in the exercise of
its discretion the
court could condone the filing of supplementary affidavits, without
the leave of the court. The applicant in
the main stated that he had
to prepare the application in two days from the time the directive
was issued. Further, he was
not legally represented.
[14]
With regard to further affidavits filed, rule 6(5)(e) provides that
the court, in its discretion may permit
the filing of further
affidavits.
[15]
Rule 12 of the Eastern Cape rules of practice provides:
‘
(a)
In all applications brought other than in the ordinary course in
terms of the Rules of Court,
the legal practitioner who appears for
the applicant must sign a
certificate of
urgency
which is to be filed of record before
the papers are placed before the Judge and in which the reasons for
urgency are fully set
out.
(b)
……
(c)
In matters contemplated in Rule 12(a) above, the registrar shall
issue the papers
and shall place the matter on the roll of cases as
may be provided for in the notice of motion commencing the
application.
(d)
……
(i)
……
(ii)
……
(iii)
Should he/she determine that is sufficiently urgent, he/she will then
give, directions
as to the time and place when and where the
application is to be heard.
[16]
From the reading of the above, there is no room for the applicant to
seek directives by placing a certificate
of urgency before a judge,
however, later claim that the application papers were not ready. Once
the judge directs that the matter
is urgent, in terms of rule 12(a)
above, and that the applicant should have the papers issued, that is
the directive that must
be carried through, as directed. The
rule envisages that the application papers are already prepared when
the judge is approached
with the certificate of urgency.
[17]
The applicant’s supplementary affidavit is a miscellany as
explained in paragraph 7 above. If
allowed, there still would
be difficult to discern whether the founding affidavit was amended;
or it was prepared solely for the
purposes of correcting errors or
sought to introduce further new answers to aspects already raised in
the affidavits.
[18]
Another difficulty would be that rule 28(1) of the rules prohibits
the amendment of affidavits, it provides:
‘
Any party desiring
to amend any pleading or document
other than a
sworn
statement,
filed in connection with any proceedings, shall notify all other
parties of his intention to amend and shall furnish particulars
of
the amendment’ (emphasis mine)
In my view, the
supplementary affidavit ought to be set aside.
[19]
The next issue relates to the rule 30A application. It is difficult
to comprehend with the way the applicant
has presented the said
application, dated 1 August 2023. In the rule 30A (1) notice
framed as an application, the respondents
were given the timetable to
file the answering affidavit by 8 August 2023, within four court days
of the notice. Having stated
that, he went on to say, if the cause of
complaint was not rectified within ten (10) days, the applicant would
move the application
to strike out the respondents’ defence.
In this sense that would be done two (2) days after expiry of the
period of
filing of the answering affidavit. This approach
flouts the provisions of the said rule and fails to properly give the
respondents
the opportunity to attend to the complaint. The
application of 24 August 2023 seeking the striking out the defence
followed
an irregular procedure.
[20]
Consequently, the first respondent’s rule 30(1) application
succeeds. In the light of the fact that
the rule 30A application has
been set aside on a procedural issue, despite my inclination that the
very directive complained of
had probably been overtaken by events,
no determination is made in that regard.
[21]
With regard to costs, this court is of the view that it should stand
over for determination in the main application.
Regardless of
the fact that ordinarily the costs ought to follow the result, this
court considers that the applicant made submissions
that the
principle in
Biowatch Trust v Registrar Genentic Resources and
others
2009 (6) SA 232
at par 56 should apply in his matters.
I would reserve that aspect to be determined in the main application.
In
the result the following order shall issue;
1. The
applicant’s rule 30A application is hereby set aside.
2. The
applicant’s supplementary affidavits and documentation in the
main application after the filing of
the replying affidavit are
hereby set aside.
3. The
applicant is hereby granted leave to file supplementary affidavit
that complies with an affidavit intended
for that purpose only within
thirty (20) days of this order.
4.
Costs of the applications are hereby reserved.
B
MAJIKI
JUDGE
OF THE HIGH COURT
Appearances:
Applicant
Mr
Khanya Mdaka
No.
1[...] C[...] Road
NGCOBO
First
Respondent’s Counsel
Mr
Botma
Instructed
by
Messrs
Messina Incorporated
c/o
JA LE ROUX ATTORNEYS
56
Leeds Road
MTHATHA